RESOLUTION
REVERSING THE DECISION OF THE BOARD OF ZONING APPEALS TO DENY A
VARIANCE TO REDUCE THE MINIMUM FRONT YARD SETBACK FROM 25 FEET TO
20 FEET AND TO EXCEED THE ALLOWANCE FOR PROJECTIONS INTO A FRONT
YARD WITH A STAIRWAY AT FIVE FEET FROM THE PROPERTY LINE FOR THE
CONSTRUCTION OF A TWO FAMILY DWELLING ON PROPERTY LOCATED AT 3129
MINNESOTA AVENUE (MARICK DEVELOPMENT, INC., BY DANIEL MADDY).

BY
COUNCILOR GILBERT:

BE
IT RESOLVED, the city council has heard the appeal of Marick Development,
Inc., of the decision of the board of zoning appeals denying applicants’
variance request and that the city council makes
the following findings:finds
that, by reason of (condition
of land) , strict application of the zoning code to this property
would result in (practical
difficulty or undue hardship) to the owner, that relief therefrom
may be granted without substantial detriment to the public good and without
substantially impairing the intent of the zoning plan and the zoning code,
that special circumstances or conditions applying to the building or land
in question which are peculiar to such property or immediately adjoining
property, and do not apply generally to other land or buildings in the
vicinity and that granting
of the application is necessary for the preservation and enjoyment of
a substantial property right, the right of and not merely to serve as a convenience to the applicant and
that authorizing of the variance will not impair an adequate supply of
light and air to adjacent property or unreasonably increase the congestion
in public streets or increase the danger of fire or imperil the public
safety or unreasonably diminish or impair established property values
within the surrounding areas or in any other respect impair the health,
safety, comfort, morals or general welfare of the inhabitants of the city.

(a)The
owner’s proposed use of the property is reasonable. Two-family dwellings
are specifically permitted in the one-family dwelling district;

(b)The
rules relating to the development of two-family dwellings specifically
include design protections unique to two-family dwellings for the specific
purpose of assuring that their character will be consistent with the surrounding
neighborhood;

(c)These
restrictions include a requirement that a two-family dwelling must be
at least 300 feet from any other two-family dwelling in the same block
and that there may only be one two-family dwelling within a block containing
an area of 120,000 square feet or less;

(d)In
addition, the property is subject to the Water Resource Management Ordinance
(WRMO). The WRMO also imposes design protections limiting the scale of
improvements. These include a restriction setting the maximum amount of
area that may be covered by impervious surface at 30 percent - thereby
limiting the size and scale of improvements;

(e)The
requested variances will not result in development that is inconsistent
with other properties in the neighborhood. The size and scope of the two-family
dwelling are in line with many new developments on Park Point. Park Point
is also replete with homes lying well within the front yard setback. The
best example is the property’s neighbor at 3123, which projects
23.5 feet into the 25 feet front yard setback. In fact, the proposed use
is more in character with the surrounding neighborhood and more in compliance
with applicable zoning requirements then the existing house and garage;

(f)The
owner has a substantial property right to develop the property for a use
permitted by the zoning code in a reasonable fashion which does not negatively
impact the surrounding neighborhood;

(g)The
property is subject to unique circumstances;

(h)Variances
relating to the front yard are necessary to accommodate the need for the
two-family dwelling to be set back at least 50 feet from the ordinary
high water mark;

(i)The
50 feet requirement applies to the property even though owner’s
lots extend substantially beyond the ordinary high water mark;

(j)The
property lies in an area where the Duluth harbor line moves in and out
dramatically;

(k)3123
is not nearly as deep as the property and the property immediately southeast
along Minnesota Avenue narrows significantly to the property;

(l)The
property northeast of 3123 juts significantly farther in to the Duluth
Harbor. Although the result is a setback line from the high water mark
which varies greatly within this immediate vicinity, owner desires to
meet the high water mark setback of 50 feet;

(m)The
owner’s proposed two-family dwelling will not alter the essential
character of the neighborhood;

(n)The
proposed use will not result in problems of fire safety, street congestion,
loss of view or otherwise reduce the value of nearby properties;

(o)As
noted above, the development of two-family dwellings in the one-family
dwelling district is subject to special design protections intended to
protect the character of the neighborhood;

(p)The
design will result in one additional dwelling and does not present any
fire safety issues;

(q)The
proposed use will not result in any material increase in traffic or street
congestion along Minnesota Avenue;

(r)The
proposed use will not result in any loss of view that would not occur
with the development of any other structure centered within the property;

(s)The
proposed development will replace buildings that are in somewhat disrepair
with a new building, and this reinvestment in the property should enhance
and not detract from the value of nearby properties.

BE
IT FURTHER RESOLVED, by the city of Duluth that the board of zoning appeals’
decision of July 26, 2005, is hereby reversed by the city council and
the variance request is granted.

STATEMENT
OF PURPOSE: Marick Development, Inc., applied to the board
of zoning appeals for a variance to reduce the minimum front yard setback
from 25 feet to 20 feet and to exceed the allowance for projections into
a front yard with a stairway at five feet from the property line for the
construction of a two family dwelling on property located at 3129 Minnesota
Avenue, and legally described as Lots 255 and 257, Minnesota Avenue, Lower
Duluth, and Lots 256 and 258, St. Louis Avenue, Lower Duluth.

The
board of zoning appeals denied the variance request because it determined
that a legal conforming dwelling could be designed to fit this lot without
needing a variance. Thus, they concluded that no hardship to the property
existed which constituted special circumstances or conditions applying
to the building or land in question which was peculiar to such property
and that did not apply generally to other land or buildings in the vicinity,
and because it was not necessary for the preservation and enjoyment of
a substantial property right and was merely a convenience of the applicant.
The applicant has appealed to the Duluth City Council.

This
resolution reverses the decision of the board of zoning appeals to deny
a request to reduce the minimum front yard setback from 25 feet to 20
feet and to exceed the allowance for projections into a front yard with
a stairway at five feet from the front property line for the construction
of a two family dwelling on property located at 3129 Minnesota Avenue.

If
the city council approves this resolution it is required to state the
factual basis for its finding in the blank spaces provided in the body
of the resolution. Such factual findings are required by the district
court in order to avoid a determination that the decision was arbitrary
and capricious.

Pursuant
to Minn.Stat.§ 15.99, the city council must act no later than November 5,
2005, which is 120 days from the date of application.